Work of ART

In a win-win, couples and donors can both be secure knowing who is and who is not a parent.

In a wonderful affirmation of the great diversity of families in the Commonwealth, families using Assisted Reproductive Technology (ART) now enjoy broader protections and security thanks to a case known as Adoption of a Minor, decided by the Massachusetts Supreme Judicial Court (SJC) in May 2015.

Consider Jane and Vivian*, a married couple living in Massachusetts, who conceived their son with the assistance of a known sperm donor. They prudently went to court seeking a joint adoption, with the expert assistance of attorney Patience Crozier of Kauffman Crozier LLP in Cambridge. They knew that parentage laws differ state to state and that marriage alone would not protect the parental rights of the non-biological parent if they left Massachusetts.

Their simple adoption case got complicated quickly. Massachusetts law locates legal parentage in the married, intended parents who use ART, a fact the judge hearing the adoption petition noted. All the same, the judge was concerned that a known sperm donor might be considered a person with parental rights by virtue of the genetic tie, and thus be entitled to notice of the proceedings. As a result, the Judge denied Attorney Crozier’s motion to proceed without notice. The judge asked the SJC to decide the legal question of whether the lawful parents [here, Jane and Vivian] must give notice to the known biological father/sperm donor.

In a victory for all families using ART, the SJC confirmed that a donor—known or unknown—“does not fit” the existing categories of persons entitled to notice of an adoption (child 12 or older, lawful parents, unmarried mother). This couple had no more obligation to notify the donor of their adoption petition than any other married couple who are intended parents using gamete donation.

The Court also interpreted the existing ART statute to provide more protections to families using ART. The Court flatly stated that when a spouse consents to a married woman’s insemination, then that spouse is the child’s other parent. The Court added that the law presumes “marital children have only two lawful parents: the biological mother and her spouse.” In a win-win, couples and donors can both be secure knowing who is and who is not a parent.

Medical assistance in having children has experienced a sea change since the 1940s when the ART statute passed, a point made in the friend of the Court brief filed on behalf of RESOLVE New Englandand others (see below) by Gay & Lesbian Advocates & Defenders (GLAD) and Professor Kari Hong. The ART statute covers not only “artificial insemination” but also “use of any assisted reproductive technology,” said the Court. This ruling clearly places Massachusetts among the more protective states for married couples using ART and for donors. While Massachusetts recognizes that “a genetic connection between parent and child can no longer be the exclusive basis for imposing the rights or duties of parenthood”, laws around the nation differ in this regard.

With a phenomenal victory before the U.S. Supreme Court in Obergefell v. Hodges in June 2015, loving and committed same-sex couples and their families in every state and territory are now entitled to the far-reaching legal protections and respect for their relationships conferred through marriage. The state laws barring recognition of marriages have also been struck down, ensuring that already married couples are treated by law as married.

Differences in state parentage law matter. When we hear from people who say, “now that we can marry, any children we have are our children legally, and we don’t need to do an adoption,” we must remind them that not all states are like Massachusetts.

Our tip: Whether you are a same-sex or a different-sex couple, where one parent is not the adoptive or genetic parent, then an adoption or other court judgment of parentage is the surest way to make certain that “non-biological” parents will be recognized as parents under the law in every state, no matter where they live, travel or move. If you have an adoption or court judgment of parentage, every state should recognize it.

The specific facts and relevant state law matter, but the reality is that not all states fully respect non-biological parents, even when they are married. Please help spread the word. We need families focusing on their children; not litigating their parentage!